J-S64040-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MIKAEL COLES
Appellant No. 3809 EDA 2015
Appeal from the PCRA Order December 7, 2015
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0003759-2012
BEFORE: STABILE, J., SOLANO, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED SEPTEMBER 28, 2016
Mikael Coles (“Appellant”) appeals from the order entered in the Court
of Common Pleas of Lehigh County denying his first petition for collateral
relief under the Post Conviction Relief Act (“PCRA”), 42 Pa.S.A. § 9541 et
seq. after an evidentiary hearing. As we discern no abuse of discretion with
the PCRA court’s rejection of Appellant’s ineffective assistance of plea
counsel claim, we affirm.
The trial court aptly summarizes the case history as follows:
On May 6, 2013, the appellant, Mikael Coles, Jr., enterd guilty
pleas to Aggravated Assault, Robbery, Burglary, and Criminal
Conspiracy. The appellant, with three (3) others, participated in
the home invasion of the Herod residence. The family members
were rounded-up and placed in an upstairs bathroom. One of
the victims, Jermaine Herod, was assaulted and then shot
multiple times.
*Former Justice specially assigned to the Superior Court.
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The terms of the plea agreement required the Robbery,
Burglary, and Conspiracy to be imposed concurrently. [] The
aggravated assault charge could be imposed either concurrently
or consecutively.[]
On August 14, 2013, after receipt and review of a presentence
report, the appellant received a total sentence of not less than
thirteen years nor more than twenty-six years in a state
correctional institution. This sentence conformed to the plea
agreement in that all the sentences were imposed consecutively.
Each of the sentences were within the standard range of the
Sentencing Guidelines, albeit the high end of the standard range.
A "Motion For Reconsideration of Sentence" was filed on August
21, 2013. The appellant in that motion conceded that the
sentence was within the standard range of the Guidelines, but
suggested that this Court failed to consider certain mitigating
factors. On September 19, 2013, the motion was denied. A
Notice of Appeal was filed, in which the appellant challenged the
discretionary aspects of his sentence. On April 30, 2015, the
judgment of sentence was affirmed. []
On June 30, 2015, the appellant filed a "Petition For Post
Conviction Relief." Counsel was appointed to represent the
appellant and filed an "Amended PCRA Petition" on October 29,
2015. It was alleged that the guilty plea was not "knowing,
voluntary, or intelligent." [] A hearing on the petition was held
on December 7, 2015, and at the completion of the hearing, the
petition was denied. A Notice of Appeal was filed on December
21, 2015. Pursuant to Pa.R.P. 1925(b), the appellant filed a
"Concise Statement of Matters Complained of On Appeal" on
January 7, 2016, raising the . . . claim [asserting that counsel
was ineffective because his explanation of the plea agreement
led appellant to believe his minimum term of incarceration would
not be more than five years].
Background
The appellant and his masked confederates entered the Herod
home through a basement window. They located six members
of the family and herded them into an upstairs bathroom. A
seventh family member hid in a closet [].
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Prior to forcing Jermaine Herod, one of the family members, into
the bathroom, they asked him for the location of his safe. In
doing so, Jermaine Herod was kicked in the head. He was then
placed in the bathroom, and the Commonwealth alleges that the
appellant fired six shots through the door striking Jermaine
Herod multiple times. [] The appellant denied that he fired the
weapon. However, a co-defendant implicated him at that act. []
The victim also believed the appellant was responsible for both
striking and shooting him. This Court in imposing sentence,
drew no conclusions regarding the shooter.
Jermaine Herod's injuries necessitated his hospitalization for
approximately one month. Bullets were still inside his body at
the time of sentencing, and he was still experiencing pain and
discomfort from his wounds. [] A victim impact statement was
read by the Chief Deputy District Attorney at sentencing. []
The motive behind the home invasion was a failed concert
promotion. [] Specifically, Jermaine Herod introduced the
appellant to a concert promoter, who was supposed to provide
musicians. [ ] The appellant allegedly provided the promoter
with a deposit of $6,000, but the musicians failed to appear.
The appellant, according to Jermaine Herod, was the only
invader known to him. During the invasion, Jermaine Herod's
tuition money, approximately $2,100, was stolen with his wallet.
The appellant indicated that he received $200 from the wallet,
and the wallet indicated that the appellant discarded a firearm in
a river. [ ]
Trial Court Opinion, filed Dec. 7, 2015, at 1-4.
Appellant presents one question for our review:
DID THE TRIAL COURT ERR IN FINDING THAT TRIAL
COUNSEL PROVIDED EFFECTIVE ASSISTANCE FOR THE
FOLLOWING REASONS: TRIAL COUNSEL WAS
INEFFECTIVE FOR EXPLAINING TO PETITIONER THAT THE
COMMONWEALTH WOULD NOT PURSUE THE FIVE YEAR
MANDATORY IN SUCH A MANNER AS TO MAKE THE
PETITIONER BELIEVE HE WOULD RECEIVE A MINIMUM
SENTENCE OF NO MORE THAN FIVE YEARS AT MOST. THIS
RESULTED IN AN UNKNOWING AND INVOLUNTARY PLEA.
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Appellant’s brief at 4.
An appellant's claim for ineffective assistance of plea counsel is
cognizable under the PCRA pursuant to 42 Pa.C.S. § 9543(a)(2)(ii). Our
standard of review applicable to such over such a claim is well-settled:
Our standard of review of a trial court order granting or denying
relief under the PCRA calls upon us to determine whether the
determination of the PCRA court is supported by the evidence of
record and is free of legal error. The PCRA court's findings will
not be disturbed unless there is no support for the findings in the
certified record.
Pennsylvania has recast the two-factor inquiry regarding the
effectiveness of counsel set forth by the United States Supreme
Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984), as the following three-factor
inquiry:
[I]n order to obtain relief based on [an ineffective
assistance of counsel] claim, a petitioner must
establish: (1) the underlying claim has arguable
merit; (2) no reasonable basis existed for counsel's
actions or failure to act; and (3) petitioner suffered
prejudice as a result of counsel's error such that
there is a reasonable probability that the result of
the proceeding would have been different absent
such error.
Trial counsel is presumed to be effective, and Appellant bears
the burden of pleading and proving each of the three factors by
a preponderance of the evidence. The right to the
constitutionally effective assistance of counsel extends to
counsel's role in guiding his client with regard to the
consequences of entering into a guilty plea.
Allegations of ineffectiveness in connection with the
entry of a guilty plea will serve as a basis for relief
only if the ineffectiveness caused the defendant to
enter an involuntary or unknowing plea. Where the
defendant enters his plea on the advice of counsel,
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the voluntariness of the plea depends on whether
counsel's advice was within the range of competence
demanded of attorneys in criminal cases.
Thus, to establish prejudice, the defendant must show that there
is a reasonable probability that, but for counsel's errors, he
would not have pleaded guilty and would have insisted on going
to trial. The reasonable probability test is not a stringent one; it
merely refers to a probability sufficient to undermine confidence
in the outcome.
(citations, quotation marks, and footnote omitted).
Commonwealth v. Lippert, 85 A.3d 1095, 1100 (2014) (quoting
Commonwealth v. Barndt, 74 A.3d 185, 191–92 (Pa.Super.2013)).
Appellant's claim, entirely credibility-based, asserts he entered an
unknowing and involuntary guilty plea because plea counsel misinformed
him that he would receive no more than a ten-year minimum sentence if he
pled. At the PCRA hearing, Appellant pointed to a letter from the prosecutor
to plea counsel outlining the District Attorney agreement, as part of the
negotiated plea, not to seek four applicable five-year mandatory minimum
sentences that would, if applied guarantee at least a 20 year minimum
sentence if aggregated. The letter, however, said nothing about agreeing to
minimum sentence of less than ten years.
Moreover, the record of Appellant's guilty plea colloquy further belies
his claim, as Appellant conveyed his understanding before the court that he
faced a potential minimum sentence of twenty years and a maximum
sentence of forty years. In so doing, furthermore, Appellant never indicated
that despite this potential, he had gained assurance from either plea counsel
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or his own reading of the prosecutor's letter that he would, in fact, be
subject to no more than a ten year minimum sentence.
Finding Appellant's assertion to be incongruent with the sentencing
instructions he received during his open guilty plea colloquy, the court
deemed incredible his testimony that he entered an unknowing plea of
guilty. Because the court's credibility determinations are substantiated by
the evidence, we are bound by them and may not reverse on this basis.
See Lippert, supra; Commonwealth v. Abu–Jamal, 720 A.2d 79, 93 (Pa.
1998). Confronted with no other argument besides Appellant's unavailing
request that this Court reassess the PCRA court's evidence-based credibility
determination, we reject the present appeal as meritless.
Order is Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/28/2016
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